Citation Nr: 0407908
Decision Date: 03/26/04 Archive Date: 04/01/04
DOCKET NO. 02-02 910 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for
folliculitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
R. A. Speck, Associate Counsel
INTRODUCTION
The veteran had active service from July 1976 to November
1976, from May 1977 to July 1981, and from September 1981 to
January 2000.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Milwaukee, Wisconsin (RO). The claims file was later
transferred to the RO in San Diego, California.
REMAND
The Board has determined that additional development is
necessary in this case.
In a November 2000 rating decision, the RO granted service
connection for folliculitis and assigned a 10 percent
disability rating. In April 2001, the veteran disagreed with
the rating that was assigned and requested that his
folliculitis be considered more disabling. He submitted a
timely appeal in March 2002. The Board notes that the
Schedule for Rating Disabilities pertaining to skin disorders
under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7833, was
revised, effective August 30, 2002. See 67 Fed. Reg. 49590-
49599 (July 31, 2002). This change became effective during
the veteran's appeal and the Board attempted to provide
notice to the veteran of the change in the law. It appears
that the letter was returned to the Board as the post office
stamp indicates that the mail forwarding period had expired.
Thus, it does not appear that the veteran has as of yet been
apprised of the change in the law and been provided an
opportunity to submit evidence and argument in this regard.
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993).
Further, upon review of the record, the Board finds that the
medical evidence currently of record is insufficient with
which to evaluate the disability at issue particularly in
view of the recent change in the rating criteria. The Board
finds that in order to fully evaluate the veteran's
folliculitis, additional examination is necessary.
Therefore, in order to give the veteran every consideration
with respect to the present appeal and to ensure due process,
it is the Board's opinion that further development is
necessary. Accordingly, this case is REMANDED for the
following actions.
1. The RO should schedule the veteran
for a VA examination to determine the
nature and extent of his service-
connected folliculitis. Any and all
indicated evaluations, studies, and tests
deemed necessary by the examiner should
be accomplished. Color photographs of
the veteran's skin should be taken and
associated with the examination report.
Findings necessary to apply the criteria
in 38 C.F.R. § 4.118 (2002) and 67 Fed.
Reg. 49596-99 (July 31, 2002) should be
set forth in detail (copies of these
regulations should be provided to the
examiner).
-The examiner should report on the
percentage of the body or exposed areas
affected by folliculitis;
-The examiner should indicate whether the
veteran undergoes systemic therapy for
folliculitis, using corticosteroids or
other immunosuppressive drugs, and the
duration of their use;
-The examiner should comment on whether
the veteran's folliculitis causes any
disfigurement of the head, face, or neck;
-The examiner should offer comments and
an opinion as whether the veteran's
folliculitis impairs the functioning of
any part of the veteran's body or could
reasonably be expected to interfere with
normal employability.
All opinions should be supported by a
clear rationale, and a discussion of the
facts and medical principles involved
would be of considerable assistance to
the Board.
2. The RO should then review the
veteran's claim under the applicable
diagnostic codes of 38 C.F.R. § 4.118, in
effect before and after August 30, 2002.
If the determination remains adverse to
the veteran, he should be provided a
supplemental statement of the case, which
includes a summary of all pertinent
evidence and legal authority, as well as
the reasons for the decision. The
veteran and his representative should be
afforded a reasonable period in which to
respond, and the record should then be
returned to the Board for further
appellate review, as appropriate.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117
Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B,
7112).
_________________________________________________
S. L. KENNEDY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).